Terms & Conditions

This agreement is made between Scale My Empire and the Client for the purposes of establishing the rights and obligations of the parties, where the Client engages Scale My Empire to perform the Project Services, according to the conditions below.

Scale My Empire provides the Project Services to clients of the Client, which may include performing project management functions ancillary to the Project Services.

1. Interpretation

1.1 In this Agreement, unless otherwise indicated by the context:

  • (a) Business Day means a day that is not a Saturday, Sunday, or public holiday in Victoria;
  • (b) Commencement Fee means a sum payable being a percentage of the initial estimated fee, which must be paid as a deposit before Project Services can be commenced by Scale My Empire;
  • (c) Confidential Information includes any information marked as confidential and any information received or developed by the Client during the term of this Agreement, which is not publicly available and relates to processes, equipment and techniques used by Scale My Empire in the course of Scale My Empire's business including all information, including price information, data, drawings, specifications, documentation, source or object code, designs, construction, workings, functions, features and performance notes, techniques, concepts not reduced to material form, agreements with third parties, schematics and proposals and intentions, technical data and marketing information such as customer lists, financial information and business plans;
  • (d) Estimate means an initial pricing quote provided by Scale My Empire;
  • (e) External Costs means costs incurred by Scale My Empire in the course of completing work for a Client which are subsequently the subject of a Tax Invoice issued to a Client. External Costs include, but are not limited to: software user licences, travel costs, couriers, equipment hire, archived file retrievals, insurances, and other ad hoc expenses.
  • (f) GST has the meaning given in A New Tax System (Goods and Services Tax) Act 1999 (Cth);
  • (g) Intellectual Property includes trademarks, patents, copyrights, processes know-how, registered designs or other like rights or any right to apply for registration of any of the former;
  • (h) Losses means all losses including financial losses, damages, legal costs and other expenses of any nature whatsoever;
  • (i) Parties means the Client and Scale My Empire, and Party shall mean either one of them;
  • (j) Related Body Corporate has the meaning given in section 50 of the Corporations Act 2001 (Cth);
  • (k) Project means each discrete project for which the Client requests Scale My Empire to perform Project Services and for which Scale My Empire provides an Estimate;
  • (l) Project Services means the services performed by Scale My Empire for a Client, including but not limited to consulting services, Podio system design and setup, outsourcing and recruiting, virtual assistant services, project management services, graphic and web design services, and training.

1.2 In this Agreement, unless otherwise indicated by the context:

  • (a) words importing the singular include the plural and vice versa;
  • (b) headings are for convenience only and do not affect interpretation of this Agreement;
  • (c) a reference to a clause, paragraph or schedule is a reference to a clause, paragraph or schedule of this Agreement;
  • (d) where any word or phrase is given a definite meaning in this Agreement, any part of speech or other grammatical form of that word or phrase has a corresponding meaning;
  • (e) an expression importing a natural person includes a body corporate, partnership, joint venture, association or other legal entity;
  • (f) a reference to a statute, statutory provision or regulation includes all amendments, consolidations or replacements thereof;
  • (g) a reference to a party to a document includes that party’s legal personal representatives, successors and permitted assigns;
  • (h) a covenant or agreement on the part of or for the benefit of two or more persons binds or benefits them jointly and severally;
  • (i) a reference to a body, whether statutory or not:
    • (i) which ceases to exist; or
    • (ii) whose powers or functions are transferred to another body, is a reference to the body which replaces it or which substantially succeeds to its powers or functions; and
  • (j) "including" and similar expressions are not words of limitation.

2. Payment of fees

2.1 The parties agree that a fee (Project Services Fee) is payable to Scale My Empire by the Client.

2.2 The Client is responsible for payment of the Project Services Fee.

2.3 Project Services Fees are in accordance with those outlined in each Estimate or provided to the Client.

2.4 Scale My Empire will provide an estimate of the Project Services Fee to the Client at the commencement of each Project. In some cases, if changes to the scope or extra work is required, the estimate will change. If the estimate changes because of a change in scope or extra work being required, Scale My Empire will, as soon as practicable, issue a new estimated Project Services Fee.

2.5 The Client acknowledges that any delay caused by the Client, including requesting suspension to the Project Services, may cause extra work to be required.

2.6 If at any time the Client requests a variation to the Project, or alters the brief, Scale My Empire will issue a new Estimate to reflect the change in scope created by the variation. Scale My Empire will endeavour to seek written approval for additional expenses pursuant to a variation. However, the Client acknowledges that it is obligated to pay all extra Project Services Fees that were verbally authorised in order to progress promptly with the Project.

2.7 A Commencement Fee of a percentage of the initial Estimate for each Project is payable before the Project Services can be commenced, as specified in the Specification.

2.8 Where applicable, any External Costs incurred by Scale My Empire in relation to any project on behalf of the client will be passed on and invoiced to the Client. The Client acknowledges that third party prices for products and services are outside our control and may be increased; or otherwise amended by the third party without notice and at their sole discretion. Scale My Empire is not responsible for any change in a third party product or service price or other terms nor liable for any loss suffered by you as a result of a third party changing their prices or terms.

2.9 The Client acknowledges that if any External Costs or third party fees (such as software licences) remain unpaid, the third party is authorised to recover such unpaid fees directly from the Client. Scale My Empire is not responsible for and will not be liable for any debt owed by the Client to any third party even if such third party fees have been included in your Client Solution Specification or change request documentation.

2.10 The Client acknowledges and agrees that it is wholly responsible for full payment of invoices issued to it by Scale My Empire for the Project Services performed.

2.11 The Client will pay the Tax Invoice issued by Scale My Empire within 14 days of receipt.

2.12 Scale My Empire reserves the right to apply interest at the General Interest Charge applied by the ATO (which is currently a rate of 9.15% per annum) to all tax invoices that are more than 30 days overdue.

2.13 Where payment remains outstanding for more than 30 days, Scale My Empire reserves the right to assign any debts payable to it to a third party without consultation with the Client.

2.14 Where a Commencement Fee, or the whole or partial payment of the Project Services Fee is required by Scale My Empire before completion of the Project Services, any failure by the Client to make such payment when required by Scale My Empire entitles Scale My Empire to:

  • (a) suspend the supply of the Project Services; and/or
  • (b) after seven (7) days’ prior written notice to the Client, terminate this contract and claim any damages. Damages will include the actual cost of work in progress up to termination plus Scale My Empire’s loss of gross profit on the Project Services.

2.15 Where any monies owing on tax invoices issued by Scale My Empire remain outstanding, the Client shall indemnify Scale My Empire from and against all costs and disbursements incurred by Scale My Empire in recovering the debt (including but not limited to internal administration fees, legal costs on a solicitor and own client basis, Scale My Empire collection agency costs, and bank dishonour fees).

2.16 Without prejudice to any other remedies Scale My Empire may have, if at any time the Client is in breach of any obligation (including those relating to payment) under these terms and conditions Scale My Empire may suspend or terminate the supply of Goods to the Client. Scale My Empire will not be liable to the Client for any loss or damage the Client suffers because Scale My Empire has exercised its rights under this clause.

2.17 Without prejudice to Scale My Empire’s other remedies at law Scale My Empire shall be entitled to cancel all or any part of any order of the Client which remains unfulfilled and all amounts owing to Scale My Empire shall, whether or not due for payment, become immediately payable if

  • (a) the Client becomes insolvent, convenes a meeting with its creditors or proposes or enters into an arrangement with creditors, or makes an assignment for the benefit of its creditors; or
  • (b) a receiver, manager, liquidator (provisional or otherwise) or similar person is appointed in respect of the Client or any asset of the Client.

3. Scale My Empire's obligations

3.1 During the term of this Agreement Scale My Empire will:

  • (a) Perform the Project Services as set out in the Specification Schedule to this Agreement on behalf for the Client.
  • (b) co-operate with the Client as the Client reasonably requires;
  • (c) provide the information and documentation that the Client reasonably requires as specified in the scope of work and/or Specification;
  • (d) treat the Client’s data with all reasonable care and in a confidential manner.

4. Client obligations

4.1 For some Project Services, the Client is required to expend a minimum number of hours of key personnel for training and design and review workshops, to ensure the success of the implemented solutions. The minimum time investment is set out in the Specification.

4.2 Where Scale My Empire has scheduled a project workshop or meeting for the Client to attend, cancellation or rescheduling of such a workshop or meeting with less than 48 hours notice will result in delay and increases to the Project Services Fee. Rescheduling a project workshop or meeting will incur a rebooking fee of $185.

4.3 If the Client fails to book (or re-book) the project workshop and/or Planning Session within 30 days from the date of specified in the Specification, Scale My Empire reserves the right to consider the Project Services to be abandoned by the Client and may cancel the Project Services. If the Client wishes to re-open the Project Services after they have been thus abandoned and cancelled, then additional costs will be incurred to reflect our costs in reengaging with the client solution specifications and scheduling time for project build, delivery and training. All such additional costs will vary depending, amongst other matters, on the length of time that has passed since the Project was originally opened. All such additional costs will be notified to you prior to re-commencement of the Project Services. Your instructions to proceed with the Project Services, whether written or verbal, will be deemed to be your acceptance of the additional charges notified to you.

4.4 The Client is solely responsible for the completeness and accuracy of data provided to Scale My Empire. Scale My Empire accepts no liability for Losses, delay, or increases in the Project Services Fee caused by the Client providing incomplete or inaccurate data which must be subsequently rectified.

4.5 The Client is solely responsible for providing the system requirements to Scale My Empire in accordance with the timeframes set out in the Specification. Delay caused by late provision of system requirement information to Scale My Empire may result in increases to the Project Services Fee.

4.6 Scale My Empire may request further instructions or action from the Client to enable it to build or deliver the Project Services. Scale My Empire will provide the Client with a timeframe within which such instructions are required to be provided or action to be taken. If the build or delivery of the Project Services is delayed because of failure to provide the requested instructions or take the required action within the specified timeframe then Scale My Empire will suffer additional expenses to extend the timeframe for the Project Services including, but not limited to, costs to re-schedule the build, delivery and training.

4.7 The Client acknowledges that Scale My Empire may, in its sole discretion, cancel the Project Services if your instructions cannot be obtained or required actions have not been taken by you after reasonable attempts by us to receive them. If Scale My Empire agrees to continue with the Project Services despite your delays, the following costs will be payable in addition to you total Project cost (including additional costs pursuant to change request):

  • (a) For any delay of up to one month, Project Services will be suspended and a new Estimate will be issued to the Client. The Project Services will only recommence when the new Estimate has been accepted by the Client;
  • (b) For any delay of more than 3 months, and for a subsequent delay of any period, Scale My Empire will, except in exceptional circumstances as determined in its sole discretion, cancel the Project Services. If Scale My Empire exercises its discretion under this subclause the Client will be required to pay all outstanding fees, including any additional fees incurred as a result of the delay, and meet all other conditions specified by Scale My Empire prior to the continuation of your Project. The Client acknowledges that this clause is reasonable and necessary to protect the legitimate business interests of Scale My Empire and to avoid incurring the costs caused by such delay.

4.8 Where the Client requires previous system data to be imported, Scale My Empire may provide a spreadsheet for the data to be imported in a specified format. It is the responsibility of the client to provide the data in accordance with the defined spreadsheet format provided by Scale My Empire to the Client.

4.9 Where the Client has any problem, issue or complaint with any of the Project Services, this must be communicated to Scale My Empire as soon as practicable when such issue arises, and to give Scale My Empire full opportunity to address issues where appropriate, which may include revision of the Project Services or supply of alternative personnel. Scale My Empire will not be liable for any Losses arising out of any delay by the Client to notify Scale My Empire of any problem or issue with the Project Services, in circumstances where Scale My Empire would have been able to rectify and/or mitigate such problem or issue had they been notified in a timely manner.

5. Non solicitation

5.1 The Client agrees that:

  • (a) this clause is reasonable and necessary to protect the genuine business interests of Scale My Empire.
  • (b) The obligations of this clause survive and continue after termination of this Agreement.
  • (c) If a Client or Related Entity of a Client engages as an employee or contractor any current or former employee or contractor of Scale My Empire within 6 months after that person ceases to provide services as an employee or contractor to Scale My Empire, then the Client must pay to Scale My Empire the sum of $3,000 plus GST.

5.2 The obligations accepted by the Client under this clause 5 survive the termination or expiry
of this Agreement.

6. No partnership or employment relationship

6.1 This Agreement shall not constitute or imply any partnership, joint venture, agency, fiduciary relationship or other relationship between the Parties other than the contractual relationship expressly provided for in this Agreement.

6.2 Neither Party shall have, nor represent that it has, any authority to make any commitments on the other Party's behalf.

6.3 The Client indemnifies Scale My Empire for all costs as a result of any Third Party claim as a result of the Client’s breach of this clause.

6.4 Nothing in this Agreement constitutes the relationship of employer and employee between Scale My Empire or any of its employees or representatives and the Client or between Scale My Empire and the Client's Personnel. It is the express intention of the parties that any such relationships are denied.

7. Disclosure and ownership of intellectual property

7.1 Unless otherwise agreed in writing:

  • (a) All intellectual property created in relation to the marketing and delivery of Project Services remains at all times including in the event of termination of this Agreement the property of Scale My Empire or its nominees or assignees.
  • (b) Any Inventions, whether or not they contain intellectual property rights capable of protection, shall be and remain the sole and exclusive property of Scale My Empire or its nominees.
  • (c) Unless otherwise expressly agreed by Scale My Empire in writing, all intellectual property existing in the underlying working files, including but not limited to Podio files, Template files, spreadsheets, database files, PDF files, working diagrams, schematics, Word document files, or any other working file, remains the property of Scale My Empire.
  • (d) Title in all intellectual property existing in the finished product the result of the Project Services does not pass to the Client or its nominee until full payment for the Project Services has been received.

7.2 The Client agrees to indemnify Scale My Empire fully against all liabilities, costs and expenses which Scale My Empire may incur as a result of any breach of this clause 7 by the Client or the Client’s Personnel.

7.3 The obligations accepted by the Client under this clause 7 survive the termination or expiry of this Agreement.

8. Confidentiality

8.1 The Client must keep Scale My Empire’s, and any Related Body Corporate of Scale My Empire's Confidential Information confidential and not deal with it in any way that might prejudice its confidentiality.

8.2 Scale My Empire and the Client acknowledge that information resulting from the activities of the Client pursuant to this Agreement shall also be regarded as Confidential Information and the Client agrees that the Client’s obligations in clause 9.1 extend to this category of information.

8.3 The Client’s obligations with regard to the Confidential Information will continue for so long as the Confidential Information is maintained on a confidential basis by:

  • (a) Scale My Empire, in the case of Confidential Information pertaining to Scale My Empire's business; and
  • (b) Scale My Empire’s client, in the case of Confidential Information pertaining to the business of any of Scale My Empire's clients.

8.4 If this Agreement is terminated by either party:

  • (a) all Confidential Information must be returned by the Client to Scale My Empire immediately, including all copies of the Confidential Information or any extracts or summaries of the Confidential Information that the Client makes and any software that the Client creates based on the Confidential Information; and
  • (b) the Client will after returning to Scale My Empire then erase and destroy any copies of any software containing or comprising the Confidential Information in the Client’s possession or under the Client' control or that may have been loaded onto a computer possessed or controlled by the Client.

8.5 The Confidential Information does not include information which:

  • (a) is generally available in the public domain otherwise than as a result of a breach of paragraph (a) by the Client; or
  • (b) was known by the Client prior to Scale My Empire disclosing the information to the Client.

8.6 The Client agrees to indemnify Scale My Empire fully against all liabilities, costs and expenses which Scale My Empire may incur as a result of any breach of this clause 9 by the Client.

8.7 The Client acknowledges that damages may be an inadequate remedy for breach of this clause 9 and that Scale My Empire may obtain injunctive relief against the Client for any breach of this clause 8.

8.8 The obligations accepted by the Client under this clause 8 survive termination or expiry of this Agreement.

9. Warranties, liability and indemnities

9.1 Each of the Parties acknowledges that, in entering into this Agreement, it does not do so in reliance on any representation, warranty or other provision except as expressly provided in this Agreement, and any conditions, warranties or other terms implied by statute or common law are excluded from this Agreement to the fullest extent permitted by law.

9.2 The Client warrants that the Client has no authority to engage the services of any person as an employee or agent of Scale My Empire.

9.3 The Client warrants that the Client shall not incur any liability on behalf of Scale My Empire or in any way pledge or purport to pledge Scale My Empire's credit or accept any other or make any contract binding upon Scale My Empire without prior approval being given by Scale My Empire.

9.4 The Client agrees to fully indemnify and keep indemnified Scale My Empire in respect of:

  • (a) any Losses suffered by any person; or
  • (b) any claim made against Scale My Empire, including but not limited to all costs on an indemnity basis; by reason of the Client's negligence or breach of these terms.

9.5 The obligations accepted by the Client and Scale My Empire under this clause 9 survive termination or expiry of this Agreement.

9.6 The Client warrants that the individual who signs this agreement on its behalf is authorised to do so.

10. Term and termination

10.1 This agreement commences on the date of signing of this Agreement ("Commencement Date").

10.2 This agreement will remain in force until terminated by either party and full payment of the Project Services Fee has been received by Scale My Empire.

10.3 Either party may terminate this Agreement for any reason by giving thirty (30) days' written notice to the other party.

10.4 If a Project is cancelled or abandoned prior to being completed, the Client acknowledges and agrees that the Project Services Fee for that Project is payable. Scale My Empire will issue an invoice for all work completed on the Project up to the time and date that written notice was given to Scale My Empire that the Project was cancelled.

10.5 If this agreement is terminated within 14 days of commencement:

  • (a) Scale My Empire will refund the full value of deposit only if no work has been commenced;
  • (b) Scale My Empire reserves the right to retain 50% of the deposit, plus value of all work completed as at the date of termination.

10.6 Scale My Empire is entitled to terminate this Agreement without notice should any of the circumstances referred to in Clause 2.17 above arise.

11. No Assignment without Consent

11.1 A party may not assign its rights pursuant to this Deed without the prior written consent of the other party or parties, which consent may not be unreasonably withheld.

12. GST

12.1 Unless otherwise provided in this Agreement, any monies payable under this Agreement have been calculated without regard to GST.

12.2 Any amount which is payable on account of GST as a consequence of any supply made under this Agreement is to be paid to the party making the supply at the same time as payment is made for the relevant supply.

13. Costs and Disbursements

13.1 Each party must pay its own legal costs and disbursements in relation to the negotiation, preparation and completion of this Agreement and other documents referred to in it, unless expressly stated otherwise.

14. Notices

14.1 A notice or other communication required or permitted to be given by one party to another must be in writing and:

  • (a) delivered personally;
  • (b) sent by registered post to the address of the receiving party specified in this Agreement; or
  • (c) sent by email.

14.2 A notice or other communication is taken to have been given (unless otherwise proved):

  • (a) if mailed, on the second Business Day after posting; or
  • (b) if sent by email before 4 pm on a Business Day at the place of receipt, on the day it is sent; and otherwise on the next Business Day at the place of receipt.

14.3 A party may change its address for service by giving notice of that change in writing to the other parties.

15. Waiver or Variation

15.1 A party's failure or delay to exercise a power or right does not operate as a waiver of that power or right.

15.2 The exercise of a power or right does not preclude:

  • (a) its future exercise; or
  • (b) the exercise of any other power or right.

15.3 The variation or waiver of a provision of this Agreement or a party's consent to a departure from a provision by another party will be ineffective unless in writing executed by the parties.

16. Governing Law and Jurisdiction

16.1 This Agreement is governed by the laws of Victoria.

16.2 Each party irrevocably submits to the non-exclusive jurisdiction of the courts of Victoria.

17. Further assurance

17.1 Each Party to this Agreement shall at the request and expense of the other execute and do any deeds and other things reasonably necessary to carry out the provisions of this Agreement or to make it easier to enforce.

18. Severance

18.1 If any provision of this Agreement is prohibited by law or judged by a court to be unlawful, void or unenforceable, the provision shall, to the extent required, be severed from this Agreement and rendered ineffective as far as possible without modifying the remaining provisions of this Agreement, and shall not in any way affect any other circumstances of or the validity or enforcement of this Agreement.

19. Counterparts

19.1 This Agreement may be executed in any number of counterparts each of which will be an original but such counterparts together will constitute one and the same instrument and the date of the Agreement will be the date on which it is executed by the last party.

20. Whole Agreement

20.1 In relation to the subject matter of this Agreement:

  • (a) this Agreement is the whole agreement between the parties; and
  • (b) this Agreement supersedes all oral and written communications by or on behalf of any of the parties.

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